Fawcett v. Fell

77 Pa. 308, 1875 Pa. LEXIS 53

• Court: Supreme Court of Pennsylvania
• Decided: February 1, 1875
• Docket: No. 123
• Status: Published

Opinion

Mr. Justice Williams'

delivered the opinion of the court,

It is elementary law that there can be no recovery in an action ex contractu against several defendants, unless they are jointly liable, and there can be no joint liability if the contract is not joint but several. Here, as the plaintiff’s statement shows, the action was brought to recover the balance of a book account for goods sold and delivered to one of the defendants, and the amount of a promissory note, of which he was the maker, and the other defendant the endorser. Judgment was entered in favor of the plaintiffs against the defendants for want of an affidavit of defence, and for the aggregate amount of both claims. It is not pretended that both of the defendants were liable for the balance claimed to -be due for goods sold and delivered to the one, and if they were liable for the amount of the note it is clear that they were not jointly liable. The contract of the maker and that of the endorser of a promissory note with the endorsee is not a joint but a several undertaking, and a joint action thereon cannot be maintained against them. As the defendants were not jointly liable for the claims sued on, the misjoinder was fatal, and all the proceedings in the action, from the beginning to the end, were a budget of blunders. If the defendants had applied to the court below to set aside the judgment, they would, without doubt, have been saved the trouble of suing out this writ of error for its reversal.

Judgment reversed.